Employer’s duty to stressed employee

Barber v Somerset County Council HL TLR 5 April

Although an employer might usually be entitled to assume that its employees were up to the pressures of the job, there might be circumstances where it should take steps to help an employee who was having difficulty in coping. This was such a case. The employee was a schoolteacher who had taken early retirement at 52 years of age after suffering a mental breakdown at school. He was head of the mathematics department and, after a restructuring of staffing at the school, he became ‘Mathematical area of experience coordinator’. To maintain his salary level Mr Barber had also taken on the post of project manager for public and media relations, working long hours totalling between 61 and 70 hours a week. The trial judge found that his work was ‘arduous, hectic and perforce extended well beyond the normal working day and encroached to a material degree into the weekend’. He was off work for three weeks with sick notes showing ‘overstressed/depression’ and ‘stress’ and on his sickness declaration stated his trouble as ‘overstressed/depression’. He was a senior, hardworking and conscientious teacher missing three weeks in the middle of the summer term which should have occasioned the school’s senior management to realise that something was going seriously wrong. Mr Barber took the initiative in arranging a meeting with the headmistress, whom the judge found had ‘treated him unsympathetically telling him … that all the staff were under stress’. Subsequently, Mr Barber had meetings with two deputy heads, one of whom had been no more sympathetic than the headmistress, and the other, although more sympathetic, had taken no steps to improve or consider the situation beyond urging Mr Barber to prioritise his work. He subsequently lost control of himself, left the school and had never returned. The overall test of whether the employer had breached its duty of care was the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know. Where he had in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. The issue of the council’s duty of care to Mr Barber was fairly close to the borderline. It had not been a clear case of a flagrant breach of duty any more than it had been an obviously hopeless claim. But the judge had concluded that the council was in breach of duty and there had been insufficient reason for the Court of Appeal to set aside his finding. At the very least, the school’s senior management team should have taken the initiative in making sympathetic enquiries about Mr Barber when he returned to work, and made some reduction in his workload to ease his return. Even a small reduction in his duties, coupled with the feeling that the team was on his side, might itself have made a real difference. In any event his condition should have been monitored and, if it did not improve, some more drastic action would have had to have been taken. Supply teachers cost money, but not as much as the cost of the permanent loss through psychiatric illness of a valued member of staff.